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United States v. Lewis

United States District Court, E.D. North Carolina, Southern Division

April 3, 2015



LOUISE W. FLANAGAN, District Judge

This matter is before the court on defendant's motions to compel the government to elect between multiplicitous counts and to dismiss for violation of double jeopardy guarantee. (DE 47, 48). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59, this matter was referred to United States Magistrate Judge Robert B. Jones, Jr., for memorandum and recommendation ("M&R"), wherein it is recommended that defendant's motions be denied. Defendant timely filed objections and the government's time for response has passed. In this posture, the issues raised are ripe for ruling. For the reasons stated more specifically below, the court adopts the M&R and denies defendant's motions.


On October 7, 2014, defendant was named in a two-count indictment charging defendant with (1) theft of firearms from a federally-licensed firearms dealer and aiding and abetting, in violation of 18 U.S.C. § 922(u) ("Count 1"), and (2) possession of stolen firearms and aiding and abetting, in violation of 18 U.S.C. § 922(j) ("Count 2").

On February 2, 2015, defendant filed two motions. The first seeks an order compelling the government elect between Count 1 and Count 2, arguing that Count 2 is a lesser-included offense of Count 1 and that punishment for both Counts would violate the double jeopardy guarantee ("Motion for Election"). The second motion seeks dismissal of the indictment, arguing it violates the double jeopardy guarantee, where defendant previously had been convicted in North Carolina's court system for the same allegedly criminal acts at issue here ("Motion to Dismiss").

These motions both were referred to a United States Magistrate Judge on February 23, 2015, for M&R. M&R was entered on March 2, 2015. Therein, it is recommended the court deny defendant's Motion for Election because defendant is not in danger of being punished for both crimes, where this court could fashion an appropriate remedy post-trial. It is further recommended that this court deny defendant's Motion to Dismiss under the "separate sovereigns" doctrine. Defendant's objections followed.


A. Standard of Review

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

B. Motion to Compel Election

Defendant argues the indictment is multiplicitous because, he asserts, a conviction on both counts would result in a violation of the prohibition on double jeopardy. As a result, defendant requests the government be compelled to elect between the two offenses prior to trial.

"Multiplicity involves charging a single offense in more than one count in an indictment." United States v. Colton, 231 F.3d 890, 908 (4th Cir. 2000) (internal quotations and citations omitted). The multiplicity doctrine "finds its roots in the Fifth Amendment's [double jeopardy] clause, which assur[es] that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.'" Id . (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)) (second alteration in original).

Nevertheless, a multiplicitous indictment is not a per se violation of the prohibition against double jeopardy. See id. at 909 ("This does not mean, however, that the multiplicitous indictment placed [defendant] in double jeopardy."). Rather, "the principal danger created by multiplicity is that a defendant will receive multiple punishments for a single offense." Id. at 910. Moreover, although a multiplicitous indictment gives the jury multiple opportunities to convict a defendant, the defendant suffers no prejudice where "the same evidence [is] offered to prove all" counts. Id.

Defendant is not entitled, at this stage, to have the government elect between the two Counts charged in the indictment. Even assuming arguendo that punishment for both charged crimes violates the double jeopardy guarantee, there is no present danger "defendant will receive multiple punishments for a single offense, " where the court can fashion a post-trial remedy. Id . In addition, because the government's recitation of the facts suggests the same evidence could support both convictions, defendant will suffer no prejudice if both counts are presented at trial. Accordingly, because the double jeopardy clause "does ...

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